Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.

Thursday, October 02, 2008

University of Oregon's motion to quash is granted; Court will, however, permit subpoena of names and addresses

Thanks to Lory Lybeck and Eric Bangeman for bringing this to my attention.

In Arista v. Does 1-17, the "John Doe" case targeting students at the University of Oregon, the Court has granted the motion to quash made by the Oregon Attorney General on behalf of the University, agreeing that the subpoena as worded imposed an undue burden on the University by requiring it to produce "sufficient information to identify alleged infringers", which the Court agreed would have required the University to "conduct an investigation to determine whether persons associated with IP addresses or others infringed copyright protected sound recordings".

The Court allowed the RIAA, however, to serve a new subpoena which could demand the identities of "persons associated by dorm room occupancy or username with the 17 IP addresses listed in Attachment A to the first subpoena".

The Court also

-decided to "presume" that the RIAA's lawyers' misrepresentation that the University would have destroyed the data was an "honest mistake", -denied the AG's request for discovery into the RIAA's investigative methods, -rejected arguments made under state and federal privacy laws, and-did not comment on the fact that the RIAA's investigators were unlicensed.

[Ed. note. Is it just me, or does this decision make no sense whatsoever? The Judge recognizes that the RIAA's investigation is insufficient to actually point to a copyright infringer, and that the only way to determine that there was a copyright infringement is to conduct a further investigation....but is directing the University, anyway, to turn over names of people who the Court recognizes may be completely innocent? -R.B.]

15 comments:

Anonymous
said...

On your ed note, I have had some experience with this judge, Judge Hogan. He is not one who is terribly concerned with intellectual consistency within his opinions.I'm staying anonymous so as to not bring myself into ill repute with this judge, since I have a few cases pending with him at the moment.

So can this second subpoena be challenged when it's served on various grounds such as the use of illegally gathered information? And whether or not MAC addresses are dictionary information?

Seems to me that the RIAA is hell-bent on just getting a list of names to harass regardless of the fact that they will end up with more names than original John Does in their suit (i.e. they sued one John Doe at a given IP address, yet will get back more than one resident of that room).

If my name was turned over to the RIAA Witch Hunt simply because my dorm room was identified by the RIAA's faulty methods and procedures I'd be mad as hell and looking to sue the university for falsely accusing me and costing me $$$ to defend myself from those baseless accusations.

It's distressing that the Oregon AG is not allowed to inquire into the RIAA's methods and procedures. This judge appears very one-sided in this regard.

Well we can only hope that this judge will give the RIAA enough rope to really hang themselves. Otherwise, the RIAA will become more obnoxious than ever thinking that "We beat a state attorney general, we really are gods!"

I can only hope that this judge will eventually see through the RIAA's lies and deceptions.

B) Non-parties have no right to discovery of parties. That is obvious. But the Judge didn't make a citation with respect to this determination, and I can't find it in the FRCP.

C) FERPA requires the University to notify students before disclosing personal information in compliance with a subpoena. But it doesn't prohibit the University from complying with a subpoena.

"§ 99.31 (9)(i) The disclosure is to comply with a judicial order or lawfully issued subpoena."

D) The case should have been thrown out because the investigators are not in compliance with the law. The IP addresses were obtained by investigators.

But I guess that issue will be left to trial. Any evidence derived from unlawfully obtained evidence is inadmissible in court.

Asking the University to identify the students who could have accessed the computer is an invasion of privacy. Now, there is no certainty as to who, if anyone, shared the music files.

In Canada, an situation similar to this didn't stand up to trial.

The Court agrees with the University that it can identify "practically" none of the Defendants. It's on the record. So anyone who is sued can argue that they were mis-identified and are not involved. That would be grounds to dismiss the case.

Of course, the RIAA will want to conduct "limited discovery" in response to a motion to dismiss. Limited discovery means obtaining all of their harddrives, which would be a further invasion of privacy. Hopefully that would be denied, otherwise this RIAA scheme will really get out of control.

7. [We] have attempted to identify all seventeen alleged infringers and have been unable to do so.8. Five of the seventeen John Does accessed the content in question from double occupancy dorm rooms at the University. With regard to these Does, the University is able to identify only the room where the content wis accessed and whether or not the computer used was a Macintosh or a PC. No login or personally identifiable information, i.e. authentication, was used by the Does to access the University's network because none is required. The University cannot determine whether the content in question accessed by one occupant as opposed to another, or whether it was accessed instead by a visitor.9. Two of the seventeen John Does accessed the content in question fiom single occupancy dorm rooms at the University. No login or personally identifiable information, i.e. authentication, was used by the Does to access the university's network because none is required. The University cannot determine whether the content was accessed by the room occupant or visitor.10. Nine of the seventeen John Does accessed the content in question from the University's wireless network or a similar system called the "HDSL Circuit." These systems do record a user name associated with the access. For these John Does, the University can determine the identity of the individual who bas been assigned the user name, however, it is unable to determine whether the content was accessed by the individual assigned that user name or by someone else using the computer associated with the user name.11. In the case of sixteen of the seventeen John Does, I believe it is not possible for the University to identify the alleged infringers without conducting interviews and a forensic investigation of the computers likely involved.

I noticed the word "joinder" does not appear in the order. Was this issue not raised by the AG, joining unrelated cases?

If the RIAA member companies are now stating a lawsuit against all the residents and guests of a given dorm room, is not a suit for each room in order? And a seperate lawsuit with enough John Does to cover all residents and any guests. Of course the school will not be able to help identify the guests.

I can see joinder for a given room, but clearly each "room" is a different case and the Plaintiffs should not be permitted to put all rooms in a single case. And as observed by others, I would think it would be wrong to allow them to receive more names than the number of John Does sued.

The way I read the order is the quash order was granted because it required the University to determine WHO was the copyright infringer, and that was determined to be an undue burden.

The way that I read the FRCP, my understanding is that ONLY information regarding the actual DEFENDANTS is obtainable.

Best case for Plaintiffs, is they will be given 9 names for the wireless circuit access, 2 names for the single rooms and 10 names (5 rooms, two people) for the double rooms.

The only problem with the above is that there are 21 names, but only 17 John Does. It does not seem proper to allow this.

Other Problems:

How many of the 9 usernames are shared with MANY MANY computers. It is quite common for wireless usernames to be shared in that enviroment, I would not shock me to find out that 1 or more of these names are shared among 100's of devices.

Who says a wireless access point was not plugged into 1 or more of the jacks in the dormrooms, and of course under that condition ANYONE in range could be the Copyright Infringer?

Im also waiting for a "Perfect Alibi" defense from 1 or more of the dorm rooms. A "Perfect Alibi" would be 1 (or both in the case of 2 person rooms) person says the following regarding their computer/connection:

1) A wireless device was connected to the jack. (Actually this part is optional, but if present would explain HOW they might have seen the files.)

2) All the residents of the room use a MAC, LINUX, or some other non windows computer that is incapable of running the p2p software in question.

I just hope when the next round happens, that they continue to put up a fight.

Actually Id like to see more ISP's and Universities be more like The University of Central Arkansas.

From the EFF report of another article:

The University of Central Arkansas defies the RIAA in another way, by designing their network so that IP addresses change constantly and are not recorded; as a result, even with a subpoena there is no way to find out who did what on their network, so no act can be tied to a specific person.

Would it not be nice for more schools and ISP's to do this...... I have suggested this before. Other than this school and Bright House Networks (Cable) in Central Florida, not many do this simple way to get rid of the RIAA.

To albert:Colombia vs Bunnell has to be considered here. If UCA cannot provide a solid techinical reason why their network is configured the way it is, the court might deem it a deliberate attempt to thwart discovery.

There are many good reasons to not log user and IP address data.1. Protect free speech. This is the single best reason, though many universities ignore it ... after all, this is about their students and faculty, not the sysadmins.2. Cheaper because you don't have to maintain logs. 3. Cheaper because you can't fill subpoenas for data that was never gathered.4. Less downtime because the servers themselves can't be seized in order to fill subpoenas for data that was never gathered.5. The university has no need of it.6. It's legal.7. Better for privacy and identity theft issues, because criminals can't hack into servers and collect logging information. This could save money too.

If universities want to save money and protect the free speech of their students, faculties, and employees, they would be wise to:1. Not log IP address and user name information.2. Not register cards for the wired network.3. Decide whether they need to register wireless cards ... many universities rightly worry about bandwidth theft, but some don't need to.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove